Employment law considerations for charity volunteers

Jemma Fairclough-Haynes

Hiring and managing charity volunteers might seem straightforward, but employment laws can be confusing and make things stressful. This quick-fire episode gives a round-up of the essentials of volunteer and employment law.

Jemma Fairclough-Haynes is CEO of the award-winning business Orchard Employment Law. With over a decade of experience in Employment Law and seven years as a business owner, Jemma has represented businesses of various sizes in employment tribunals across the UK in many different types of claims. To find out more about her work, visit: https://www.orchardemploymentlaw.co.uk/

Resources and links


Zac Parsons
Hello, everyone. And welcome to this edition of The Charity Professional Development Community’s 20-minute webinars. So, as always, first of all, a big shout out to all of you for all of the charity work that you do. Today, we are joined in person, even though it’s a webinar, I have the pleasure of being in person with Jemma Fairclough-Haynes, excuse me, who’s going to talk to us about the essentials of employment law for volunteers. So, Jemma, we are going to hand over to you. We’ve got your slides ready. So let’s pop those up. And away we go.

Jemma Fairclough-Haynes
Fantastic. I’m just gonna move slightly centre. And … I can’t see you, but you can see me, so you can see me properly. Hello, and thank you for joining. It’s absolute pleasure to be here. My name is Jemma Fairclough-Haynes and I’m from Orchard Employment Law. Today, I’ll be speaking to you about volunteers and employment law: the essentials.

First of all, let’s talk about worker status. Why am I jumping straight into worker status? It’s because it’s important. We’ve got different types of worker status, but which volunteers don’t fit into any. But it’s still important to understand what those three things are. Not only is it important, it may just be interesting. And I have to say, to the average Joe, most people don’t get this until I explain it.

Most people understand what an employee is, you’ve either been an employee or you’ve employed somebody or you know someone who’s been an employee. And that’s where there’s an obligation on an employer, that could be a person, it could be an organisation, it could be a limited company, or it could be a partnership, it might even be a trust or a charitable organisation. But you understand that whoever it is that you work for, as an employee, has an obligation to provide you with work, they have an obligation to keep you safe, and they’ll provide those tools for you to work. So, whether it’s notebooks or hard hats, it’s not something you’d be expected to provide as an employee. But, as an employer, you also understand that all of the burden is on you in terms of tax implications, in terms of National Insurance implications, in terms of holiday pay, sick pay, and so on and so forth.

And then most people understand what a self-employed person is, again, either you’ve been self-employed, or you know someone who’s self-employed, you pretty much understand that being self-employed means that all of that burden, again, is on you. As a self-employed person, you will be responsible for your taxes, will be responsible for National Insurance, you’ll be responsible for filing the business, and you’ll be responsible for paying yourself.

Now, where people get a little bit unstuck is this whole worker identity, sometimes we refer to as freelancers or casual workers, sometimes contractors, but not always. And that’s kind of this hybrid, I guess, term where you’re not quite an employee, but also you’re not quite a self-employed person. The easiest way to explain it is a zero-hours worker, that’s where there’s no obligation to provide you with work. But if you accept the work, it’s pretty much accepted that the worker will do it. But a worker is not entitled to things such as unfair dismissal, in most circumstances; there are few occasions where they are. And they are expected to be protected like an employee would be against discrimination and other things.

And essentially why I’m telling you this is because volunteers are none of those things. And that accidentally, we as an organisation, or as employers might find ourselves putting a volunteer in that worker or employee box without intending to. So that’s why I’ve got that background there. Moving on.

So, what is a volunteer then? Now you’d be surprised to know – because I’m a little bit of a geek like that and I always look up dictionary terms, and I look up the legal term and – a volunteer is not the term defined in law. Can you imagine that? How bizarre that a volunteer is a term we have in the dictionary, but it’s not something which is defined in law! But for the dictionary definition, most of us understand that that’s somebody who gives their time without expecting anything in return. And for lots of charitable organisations, they are essential to making sure that those pennies are really spent where they need to be spent also that work that we really need doing can be done.

What rights do volunteers have? You’ll be pleased to know volunteers do have some rights. Even if you are volunteering your time, or if you have volunteers coming into whatever your working environment is, they have a right to a safe environment. Just because somebody has volunteered doesn’t mean that the Health and Safety Act doesn’t apply, au contraire, it absolutely does apply. They’re still covered by GDPR. Remember that thing that came in some years back that we couldn’t stop talking about? The thing which replaced the Data Protection Act, or should I say added to the Data Protection Act. It stands for General Data Protection Regulation. Think about it, this is what it is, we’re so used to now saying ‘GDPR’, it almost rolls off the tongue. But it is those things, we still need to make sure that we are looking after our volunteers’ data. So whether that is their names, their date of birth, their addresses, any information, which is personal to them, just because they’re a volunteer, we still need to make sure that we are looking after them and protecting them wherever possible.

They still count, a volunteer still counts, as a number of people in a business. And you might think to yourself “well, Jemma, duh” or you might think “so what? why are you telling me this?”, and the reason why I’m telling you that is because any business, which has five or more people in it, including directors, including trustees, including employees, workers, or indeed volunteers, has to have a certain amount of policy. So they have to have things on health and safety, for instance, you have to have a health and safety policy. So if you are just starting out as a charitable organisation or maybe you’ve been going for a long time, you need to think about the number of people you have in your business and include volunteers within that number. Hopefully, that makes sense. If it doesn’t put it in the chat, and I’ll go over it again.

Volunteers are not ‘usually’ – put that in inverted commas – covered by employment law. And what I’m going to talk about now is how contracts are made. Because if we don’t understand how contracts are made, then we might find ourselves accidentally entering into an employment contract or a worker contract.

Without teaching you to suck eggs, I’m going to tell you that contracts are made by things written, things said, and things done, and the law. You’ll notice I keep saying “things”, that’s because I like to keep things simple and clear and uncomplicated. And I think we tend to understand that to things written, most people understand that you might have a bit of paper or PDF or something like that – because we’re very digital now, aren’t we? – which will form a set of terms and conditions. It might form a contract, most of us understand what that is. But what we tend to see where I see some organisations trip up, And this isn’t, it’s not only charities, it’s organisations across the board, is that we forget that things written might be a WhatsApp message, or a Slack message, or Teams message, or a text message or something jotted down on a bit of paper. Listen, don’t write down what you don’t want to be held accountable for. Okay, so anything written could become contractual.

And then there are things that are said. And that’s another place where we tend to find people slip up. So you’ll be having a meeting with somebody, maybe in the course of interviewing, because we do interview volunteers, certainly, we still want to make sure that our service users are protected, that our volunteers have the right ethos, values, and skills to offer. So, you might do an interview, you might not call it an interview, but you’ll have some sort of conversation. And you might say something which can become contractual. Not only that, because again, you might think “well, that’s quite formal”, but maybe in the course of the volunteering, you say, “well, actually, I’ll pay for your lunch next week”, something like that could potentially become contractual. I know this seems like I’m not giving you very much detail. But I promise in the next slides to come that I will explore, at least the things said and the things done, in a bit more detail.

And things done. So there is this thing about custom and practice. And if you do things over and over again, unfortunately, there is no rule about well, how much over and again, is too many. And you know, where is the line, there isn’t a set line. But if you do things and it can be considered it can be expected to be relied upon over and over again – like maybe give somebody a bonus – if you do that over and over again, that might be considered contractual.

And then the final thing is the law. No matter try as we might – or might not – we can’t contract ourselves out of certain things. There is a protection, level of protection, which is there for everybody, which means that we can’t say we’ve got the right to do certain things because the law prohibits us from doing so.

Now it’s not just about things written, things said, things done, and the law. There are three elements which will which create any contract; this literally applies to any element of your life.

There must be an offer. The offer might be something like, “if you will do this volunteering for me, I will give you a reference”. We’ll talk a touch on that a little bit more later.

There must be consideration. Consideration, it’s a bit of a fancy legal term for an exchange. So somebody’s giving you something in return for that offer. And most people understand like in the employment relationship, that consideration will be, you know, “I am expecting that money and, as an exchange, I come to work and I get that money”. But a consideration might be something else, it might be a promise, or it might be something that you’ve come to rely on.

And then there must be acceptance. So you could offer somebody something they might offer, you know, do the consideration, but if they give it back, there’s no acceptance, then there isn’t a contract. So just think about where else that might apply in your everyday life, actually, in terms of how contracts are made.

Examples of when a volunteer becomes an employee. So there are things such as where a payment exceeds expenses, let’s just explore that a little bit. Because the truth of the matter is most of us are good people. And this is where again, charitable organisations often come unstuck. So they’ll have a volunteer come in, for instance, you might have a volunteer come into your establishment or your organisation. And then we know that the bus fare – I’m gonna talk about the good old days – was £3.50 (I actually haven’t caught the bus in a while, I imagine it’s probably gone up since then) and you go, “do you know what I’ll give you expenses”. Now, if your expenses are £5 a day, and the bus fare’s only £3.50. then what you’ve done is, you’ve given £1.50 worth of consideration. Because actually, that’s not expenses, is it given over and above what the expense is. And you might say to me “well, Jemma, what if I’ve got two volunteers, I don’t want to treat them differently. What if one’s bus fare is £5 and one’s train fare £3.50? I want to give them the same thing”. Well, you can’t do that, essentially. Because once you do that, you start putting yourself in the position of being an employer, you start paying somebody for something, and then you might be liable for minimum wage. So my solution to that, in terms of expenses, is let’s get receipts, whether it’s a taxi receipt, whether it’s a bus receipt, whether it’s even lunch, okay? We only get one-off vouchers of a certain sum, because you might find yourself having a volunteer become an employee.

Then there’s where we make payments when someone’s off sick or on holiday. And I find this across the board with all types of organisations, to be honest with you. I’ve been doing this now for well over 10 years – and my business actually has been going since 2015 – and some things don’t change. And things that don’t change is most people are good people. And they think “well, I know that if they don’t come in this week, it’s going to affect them. I know that if they go away for two weeks that this is going to affect them, because they used to getting that lunch voucher, they used to get in that taxi, that train fare” or maybe, just maybe, it’s a bit of a slip; the bookkeeper didn’t take note that that person wasn’t in and still has been paying this expense week in week out and still paid it.

And this has happened in a well-known case Migrant Advisory Service v Mrs. Chaudri. Where Mrs. Chaudri was receiving holiday payments and sick payments when she wasn’t even volunteering. And she bought the claim and said, “Well, I think that makes me an employee”. And you know what the court said? “Yeah, yeah, you’re right, that makes you an employee”. And so they had to backdate all of these payments, when they should have been paying but weren’t because they thought the person was a volunteer.

And also there are some other things that come with, you know, someone being an employee, such as the entitlement to unfair dismissal. So, even if you want to do these things, my advice to you is don’t do it. You’ve got to be absolutely strict on that.

What about, you know, you’ve promised somebody employment or you promised them a reference. And I see this all the time, even with work experience, which is kind of a little bit like volunteering, isn’t it? Where people go “well, actually if you do this, we’ll give you a job at the end of it”. Or maybe they don’t have to give you a job, you go “if you do this, I’ll give you a reference” because it’s difficult, isn’t it? How are we attracting those great volunteers without when we’re not giving them anything? I mean, that’s a whole other talk, because I think we give you give loads. But there is that feeling, I think amongst us as humans, sometimes I think but then it needs to be something, maybe a promise, to give them a reference. But that, my dears, is a promise to give somebody a reference or a promise of employment is what we would consider as consideration. So taking you back to that last slide, what you’d be doing is creating an employment contract.

And then this thing, which is referring to volunteers as employees, and this happens more often when you would see an organisation that has lots of different types of staff members and it’s not just volunteers but they fall foul of this with, but also workers. So maybe you’ve got an organisation, you might be 10 people, you might be 300 people, you’ve got some people who are employees, you’ve got some people who are workers, you’ve got some people who are self-employed, and others are volunteers, and you just blanketly say “employees” all the time, rather than “staf”, if you’re from where I’m from, or “stahff”, if you’re from here, if you’re southern. So, you know, be careful, because if you are constantly referring to either verbally, remember things said, or things written, where you’ve got policies and procedures, if you are referring to these people as employees, because it’s a slip of the tongue, you might find yourself accidentally treating people like an employee, and then they become employees and are able to have one of these things.

And then, as well, is not having a volunteer agreement in place. So this is a tricky one, isn’t it? Because there’s no legal requirement to have a volunteer agreement in place, it’s not like, when you have an employee, you’ve got to provide that contract by day one, it’s not like that, is it? So you might think, “well, I’ve had a chat with them, they know what they’re coming into, you know, do what they need to do, they’re really passionate about it, they love the charity, you know, we love them, service users love them, it’s all fantastic”. But, y’know, a great place to start is always with having something written down, some terms.

And remember, it’s an agreement. So it’s not all one-sided, it’s not all “we expect you to…” it’s also what people can expect from, you know, what the volunteers can expect from us, so we will keep you safe, we’ll try our best to keep you safe. In that agreement, me with my legal head is saying, ‘under no circumstances are you an employee’, that’s really what we want to be saying and as well. And then, making sure we don’t have expectations.

Another place where charity sometimes become – or any organisation, to be honest – become unstuck with volunteers is because we rely on them. We then start to expect them to do a certain number of hours or a certain number of days. Remember, they’re volunteering their time, and the moment you impose that expectation on them, then you start falling out of that volunteer relationship and more into something like an employee relationship. So, I guess, what I’m saying is just some food for thought.

Coming back to this volunteer agreement, some other things that you might want to include in there is, as I said, the clarity – absolutely number one – clarity that there’s no intention to form an employment status, you want to start date, because you want to be clear about when this agreement goes into effect, that’s just the same for any type of agreement or contract should have. You want to be clear about expenses. So going back a couple of slides when I was talking about, not paying £5 expenses, or a day-rate expense, or a month-rate expense or allowance, making sure that you actually have receipts or some sort of evidence for what the expense is, and you’re only paying the expense and no more. And being clear about expectations between both parties that are between the organisation and also between the volunteer. So are there any questions? Let me move over so Zac can come into the frame.

Zac Parsons
Well, I mean, first of all, Jemma … I should probably sit down, before I start talking, shouldn’t I? … That was incredible. Thank you so much. I learned so much from that. So that’s amazing. Right, I’m gonna, so one of the questions that I have is: you mentioned about not expecting volunteers to do set hours. And I wonder how that extends to responsibilities. So if I wanted to delegate … whatever it might be to volunteer … and I would like them to do it, say on a weekly basis. Where am I in that situation?

Jemma Fairclough-Haynes
Well, that’s a tricky one, isn’t it? And I think it depends on what you’re expecting that volunteer to do. Because there might be things where, actually that can only be done at 10 o’clock on a Tuesday. But if there are things where you can say “this needs to be done” … I don’t know … “I need” – for argument’s sake – “some filing done” – this because I actually can’t think of anything a bit more creative to say. “I need some filing done by Friday”, then that person can come in and do the filing, whenever during the course of the business hours, and things like that can be written into the agreement. You know, these are business hours, you don’t want people coming in the middle of the night, because we’d call the police; you don’t want people coming in the middle of the night. And so it’s quite acceptable to say “actually, we’d like this… it would be great if you could do this by Wednesday”. I guess it may be it’s a people service type thing and you’re buddying up with somebody, you may have to say, “Well, look, we’ll leave it to you to liaise with the service user, or the service user has said they’re available on Monday, Tuesday, Wednesday. Would it be possible for you to fit in with them at that time?” right. Okay.

Zac Parsons
Yep, absolutely. So having an element of flexibility and not saying specifically. Brilliant. Brilliant. Okay. Well, I think that is all we have time for today. So, thank you, everyone. Lovely to see you all, as always, and I will see you next time.